Payload Processing Facilities And Support Agreement

Portions of this Exhibit have been omitted pursuant to a request for
confidential treatment. The omitted portions, marked by ****, have been
separately filed with the Commission.


EXHIBIT 10.104


AGREEMENT NO. 48801
AMENDMENT 5


AGREEMENT BETWEEN


ASTROTECH SPACE OPERATIONS, INC.


AND


LOCKHEED MARTIN COMMERCIAL LAUNCH SERVICES, INC.


FOR PROVISION OF


PAYLOAD PROCESSING FACILITIES AND SUPPORT


IN CONJUNCTION WITH


COMMERCIAL ATLAS LAUNCHES


2


TABLE OF CONTENTS
Page
------ Table of Contents i Amendment 1 iii Amendment 2 iv Amendment 3 v Amendment 4 vi Amendment 5 vii Title & Preamble 1
1. Recital 1
2. Format of Agreement 2
3. Changes 2
4. Description of Services 2
5. Documentation Requirements 3
5.1 General 3
5.2 Payload Processing Requirements Document 3
5.3 Hazardous Procedures 4
5.4 Liquid Propellant Operations Crew Certification 4
6. Environmental, Safety, and Health Responsibilities 4
6.1 Astrotech Obligations to LMCLS 4
6.2 LMCLS Obligations to Astrotech 6
7. Coordination 7
7.1 Agreement Coordinators and Technical Managers 7
7.2 Coordination with USAF 7
7.3 Additional Coordination 7
8. Schedule and Facility Assignment 7
8.1 Occupancy Period 7
8.2 Key Dates 7
8.3 Schedule Changes 8
9. Service Fees and Other Charges 9
9.1 Price 9
9.2 Payments 9
9.3 Billing and Payment Schedule 9
10 .Allocation of Certain Risks of Liability and Damage 10
10.1 General 10
10.2 Definitions 10
10.3 Damage to Persons or Property Involved in Payload Processing Activity 11
10.4 Risk of Patent Infringement 13
10.5 Assistance with Third Party Claims 13
11. Limitation of Astrotech and LMCLS Liability 14


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12. Termination 14
12.1 Termination by LMCLS 14
12.2 Termination by Astrotech 15
13. Handling of LMCLS and Customer Provided Data 16
13.1 Technical Data Furnished to Astrotech by LMCLS and Customer 16
13.2 Financial and Commercial Data 16
14. Patent and Data Rights 17
15. Compliance With the International Traffic in Arms Regulation (ITAR) 17
15.1 Conduct of Activities 17
15.2 Technology Assistance Agreement 17
15.3 Signature Assistance 17
16. Permits and Licenses 17
17. Warranty 18
17.1 Warranty of Services 18
17.2 Exclusivity of Warranties and Remedies 18
18. Notices 18
19. Governing Law 19
20. Severability 19
21. Waiver 19
22. Disputes 19
22.1 Disputes Resolution 19
22.2 Performance During Submission of Dispute 20
23. Headings 20
24. Assignability 20
25. Disclaimer of Authority 20
26. Complete Agreement 20
27. Effective Date and Duration of Agreement 20


Appendix 1: Agreement Exhibit Format Appendix 2: Spacecraft Services Appendix 3: Atlas Launch Vehicle Services Appendix 4: Price Schedule


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AMENDMENT 1


1. Description of Amendment. Amendment 1 (i) extends the duration of this Agreement from 4 March 1989 through 31 December 1994 to 4 March 1989 through 31 December 1997, (ii) and similarly extends the Appendix 4 Price Schedule.


2. Incorporation of Amendment 1 Change Pages. Amendment 1 consists of the following change pages: Coverpage; i; iii; iv; 24; Appendix 4, Page 1 of 3, Page 2 of 3, and Page 3 of 3. Where change pages contained in Amendment 1 have the same page number as pages in the previous issue of this Contract, the Amendment 1 changes pages are to be substituted for and replace the corresponding previous issue pages in their entirety. All pages of this contract affected by Amendment 1 carry the notation "AMENDMENT 1" in either the upper or lower righthand corner. The update of this Contract to Amendment 1 is accomplished by the addition of substitution, as appropriate, of all Amendment 1 change pages.


3. Effective Date. This Amendment 1 shall enter into force as of the date of the last signature of the parties shown on Page 24.


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AMENDMENT 2


1. Description of Amendment. Amendment 2 (i) extends the duration of this Agreement from 4 March 1989 through 31 December 1994 to 4 March 1989 through ****, (ii) recognizes the change from NASA to USAF as the source of Government support provided to Astrotech, and (iii) revises, and simplifies and extends the Appendix 4 Price Schedule to cover the time period through the year 2000.


2. Incorporation of Amendment 2 Change Pages. Amendment 2 consists of the following change pages: Coverpage; i; iv; 3; 6; 19; 21; and 24; and Appendix 4 in its entirety. Where change pages in Amendment 2 have the same page number as pages in the previous issue of this Contract, the Amendment 2 change pages are to be substituted for and replace the corresponding previous issue pages in their entirety. All pages of this Contract affected by Amendment 2 carry the notation "AMENDMENT 2" in either the upper or lower righthand corner. The updaate of this Contract to Amendment 2 is accompliahed by the addition or substitution, as appropriate, of all Amendment 2 change pages.


3. Effective Date. This Amendment 2 shall enter into force as of the date of the last signature of the parties shown on Page 24.


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AMENDMENT 3


1. Description of Amendment. Amendment 3 (i) recognizes that Martin Marietta Commercial Launch Services, Inc. has been renamed Lockheed Martin Commercial Launch Services, Inc. and that all references in this Agreement to General Dynamics Commercial Launch Services, Inc. or GDCLS are to be construed to be references to Lockheed Martin Commercial Launch Services, Inc. (LMCLS), (ii) revises the expiration date of this Agreement to 31 December 1997, and (v) revises the Appendix 4 Price Schedule to extend the previous Price Schedule for an additional one year period, with the option to elect an Alternative Price Schedule for a multi-year period at a reduced per payload price.


2. Incorporation of Amendment 3 Change Pages. Amendment 3 consists of the following change pages: Coverpage; i; ii; v; and 24; and Appendix 4 in its entirety. Where change pages in Amendment 3 have the same page number as pages in the previous issue of this Contract, the Amendment 3 change pages are to be substituted for and replace the corresponding previous issue pages in their entirety. All pages of this Contract affected by Amendment 3 carry the notation "AMENDMENT 3" in either the upper or lower righthand corner. The update of this Contract to Amendment 3 is accomplished by the addition or substitution, as appropriate, of all Amendment 3 change pages.


3. Effective Date. This Amendment 3 shall enter into force as of the date of the last signature of the parties shown on Page 24.


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AMENDMENT 4


1. Description of Amendment. Amendment 4 (i) recognizes that all references in this Agreement to General Dynamics Commercial Launch Services, Inc. or GDCLS are to be construed to be references to Lockheed Martin Commercial Launch Services, Inc. (LMCLS), (ii) incorporates LMCLS's commitment to exclusive use of Astrotech Services, (iii) revises the termination provisions to be consistent with the exclusive use commitment, (iv) retains the expiration date of this Agreement as 31 December 1999, (v) revises the Appendix 3 Services for Payload Fairing Encapsulation to indicate GDCLS responsibility for transport, and (vi) revises the Appendix 4 Price Schedule.


2. Incorporation of Amendment 4 Change Pages. Amendment 4 consists of the following change pages: Coverpage; i; vi; 2; 16; 16a, 24; Appendix 3 Page 1 of 3, and Appendix 4 in its entirety. Where change pages in Amendment 4 have the same page number as pages in the previous issue of this Contract, the Amendment 4 change pages are to be substituted for and replace the corresponding previous issue pages in their entirety. All pages of this Contract affected by Amendment 4 carry the notation "AMENDMENT 4" in either the upper or lower righthand corner. The update of this Contract to Amendment 4 is accompliahed by the addition or substitution, as appropriate, of all Amendment 4 change pages.


3. Effective Date. This Amendment 4 shall enter into force as of the date of the last signature of the parties shown on Page 24.


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AMENDMENT 5


1. Description of Amendment. Amendment 5 (i) changes all references to General Dynamics Commercial Launch Services, Inc. or GDCLS to Lockheed Martin Commercial Launch Services, Inc. (LMCLS), (ii) changes all references to Astrotech Space Operations, L.P. to Astrotech Space Operations, Inc., (iii) incorporates reference to Facility Requirements Document for Florida TICO facility expansion, (iv) incorporates references and standard services for Astrotech Vandenberg AFB payload processing services, (v) revises the Appendix 2 and Appendix 3 Services for Spacecraft Processing and Payload Fairing Encapsulation to meet Atlas V requirements, (vi) revises the Agreement expiration date to ****, (vii) provides for **** one-year option periods for calendar years **** through **** inclusive, and (viii) revises the Appendix 4 Price Schedule.


2. Incorporation of Amendment 5 Changes. Amendment 5 is a complete revision to the Agreement, replacing the original issue and Amendments 1 through 4 in their entirety.


3. Effective Date. This Amendment 5 shall enter into force as of the date of the last signature of the parties shown on Page 21.


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AGREEMENT BETWEEN
ASTROTECH SPACE OPERATIONS, INC.
AND
LOCKHEED MARTIN COMMERCIAL LAUNCH SERVICES, INC.
FOR PROVISION OF
PAYLOAD PROCESSING FACILITIES AND SUPPORT
IN CONJUNCTION WITH
COMMERCIAL ATLAS LAUNCHES


This Agreement is entered into by and between Astrotech Space Operations, Inc., a Delaware corporation and a wholly-owned subsidiary of SPACEHAB, Inc. (hereinafter called "Astrotech"), and Lockheed Martin Commercial Launch Services, Inc., a Delaware corporation (hereinafter called "LMCLS"), and sets forth the terms and conditions under which Astrotech shall furnish Payload Processing Facilities and Activities to LMCLS and to each LMCLS customer (hereinafter called "Customer") so identified in a duly executed Exhibit to this Agreement in conjunction with commercial Atlas launches.


1. Recital. LMCLS has established a program to provide Atlas expendable launch vehicle launch services on a commercial basis utilizing launch facilities at Cape Canaveral Air Station, Florida and Vandenberg AFB, California. Under its contract with Customer for Atlas launch services, LMCLS acts as the agent of Customer to arrange for all Customer-required prelaunch Payload Processing Facilities and Activities. Therefore, in conjunction with these commercial Atlas launches, LMCLS will require specialized facilities and support (hereinafter called "Services") for the preparation of each Customer spacecraft and its respective upper stage system, if applicable, the payload fairing, and all other associated property to be flown aboard the Atlas launch vehicle (hereinafter called "Payload"), and for Atlas payload fairing encapsulation activities. Astrotech has built and operates specialized Payload Processing Facilities in Titusville, Florida adjacent to the NASA-John F. Kennedy Space Center (hereinafter called "Astrotech TICO") and at Vandenberg AFB, California (hereinafter called "Astrotech VAFB") wherein Astrotech offers such Services. Under this Agreement LMCLS will utilize Astrotech Services for the prelaunch processing of the Payloads for commercial Atlas launches for the duration of this Agreement. Additionally, as mutually agreed, LMCLS will provide, without cost to Astrotech, engineering support services to Astrotech (e.g., reviewing Astrotech drawings and analyses) for facility modifications necessary to satisfy future LMCLS and Customer payload processing requirements.


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2. Format of Agreement. This Agreement is in the form of a Basic Purchase Order Agreement. The Title, Preamble, Sections 1 through 27, and the Appendices of this Agreement constitute the general terms and conditions (hereinafter called "General Terms and Conditions") applicable to the Services to be provided by Astrotech for all Payload Processing Activities performed under this Agreement. The mission specific details and requirements for each Payload are contained in a series of Exhibits, modeled after Appendix 1, which will be attached to and made part of this Agreement as they are mutually agreed to and signed by authorized representatives of LMCLS and Astrotech. Any alteration or exception to the General Terms and Conditions for a specific mission will be clearly stated and identified in the applicable Exhibit.


3. Changes. Changes to the Services defined herein to be provided by Astrotech to LMCLS under this Agreement may be agreed to by LMCLS and Astrotech and shall be evidenced by a written amendment to the General terms and Conditions or applicable Exhibit of this Agreement, as appropriate, prior to implementation of such change.


4. Description of Services. The description and specifications of the Astrotech TICO facilities and equipment, as they pertain to this Agreement, are those contained in the Astrotech document titled "Facility Accommodation Handbook/TICO" dated June 1994, and subsequent revisions that do not diminish the previously stated capabilities, which is explicitly incorporated by reference herein and the Lockheed Martin Astronautics Astrotech Satellite Processing Facility, Bldg. 10, Facility Requirements Document (SPF-FRD-99) dated 19 January 2000, and subsequent revisions mutually approved by LMCLS and Astrotech. The date for LMCLS beneficial occupancy of the Bldg. 10 facility shall be ****. The description and specifications of the Astrotech VAFB facilities and equipment, as they pertain to this Agreement, are those contained in the Astrotech document titled "Facility Accommodation Handbook/VAFB" dated March 1998, and subsequent revisions that do not diminish the previously stated capabilities, which is explicitly incorporated by reference herein. Astrotech shall maintain the TICO and VAFB facilities to ensure readiness to support LMCLS and LMCLS Customer requirements consistent with the capabilities specified in the above documentation. In addition to operating and maintaining the Astrotech TICO and Astrotech VAFB facilities, Astrotech shall provide to LMCLS for each Customer Payload to be processed under this Agreement the "Spacecraft Services" set forth in Appendix 2 of this Agreement and for each associated Payload fairing encapsulation to be accomplished under this Agreement the "Atlas Launch Vehicle Services" set forth in Appendix 3 of this Agreement. It is recognized by LMCLS and Astrotech (i) that certain of the Services to be provided to LMCLS will be obtained by Astrotech from the U.S. Government pursuant to "Department of the Air Force/Astrotech Space Operations Commercial Space Operations Support Agreement", executed 15 November 1999, and subsequent revisions, and (ii) that LMCLS and Customer or their respective contractors or


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subcontractors, other than Astrotech, shall perform all activity involving assembly, servicing and checkout of the Payload and use of its associated ground support equipment, unless otherwise expressly provided for in this Agreement.


5. Documentation Requirements.


5.1 General. LMCLS shall provide Astrotech the documentation described in Sections 5.2, 5.3 and 5.4 below applicable to the activities planned to occur at the Astrotech Facility. While it is essential that the required content of this documentation be complete as defined below, Astrotech will accept the documentation in any format convenient to LMCLS and Customer. In particular, to the extent the required documentation has been prepared for and approved for activity in Government facilities such documentation shall be fully acceptable to Astrotech, except to the extent additional information may be required to adequately define a planned activity at the Astrotech Facility. Astrotech will evaluate such LMCLS provided documentation only from the standpoint of facility compatibility and safety, and will not attempt to evaluate, in any way, the probability of Payload success. All such documentation shall be written in the English language.


5.2 Payload Processing Requirements Document. A Payload Processing Requirements Document (or Documents) for each Payload shall be submitted to Astrotech nominally nine months prior to the beginning of the Occupancy Period set forth in Section 8.1 below for the particular Payload, unless otherwise agreed to in writing by Astrotech. This document shall provide a description of the Payload (including a description of each hazardous system), outline all Payload and Payload fairing activities planned to occur at the Astrotech Facility, and detail all services and support requested by LMCLS to be provided to LMCLS and Customer by Astrotech. The hazardous systems description shall include drawings, schematics, summary test data, and any other available information which will aid in appraising the respective systems. Hazardous systems description shall include ordnance devices, radioactive materials, propellants, pressurized systems, toxic material, cryogenic material, and radio frequency (RF) radiation, and any other system which is a source of danger either to personnel or equipment. Astrotech will review the Payload Processing Requirements Document, which, when mutually agreed to by Astrotech and LMCLS, will constitute the detailed definition of the Services to be provided by Astrotech for the particular Payload and associated Payload fairing encapsulation. For repeat payload processing operations, to the extent that identical Spacecraft processing operations and Payload fairing encapsulation operations are to be performed, a one-time submittal will suffice for all such operations.


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5.3 Hazardous Procedures. Detailed procedures must be prepared for all operations at the Astrotech Facility involving hazardous systems, as defined in Section 5.2 above. Hazardous procedures planned for use at Astrotech VAFB must be prepared in accordance with WR 127-1. All such procedures shall be clearly labeled as "Hazardous" and shall be submitted to Astrotech for review no later than forty-five (45) days prior to planned use at the Astrotech Facility, unless otherwise agreed to in writing by Astrotech. Once mutually agreed to by Astrotech and LMCLS, hazardous procedures shall be followed without exception. Any changes to an approved hazardous procedure must be mutually agreed to by the Astrotech and LMCLS Technical Managers prior to use.


5.4 Liquid Propellant Operations Crew Certification. A Liquid Propellant Operations Crew Certiciation shall be submitted by LMCLS to Astrotech no later than one week prior to the beginning of liquid propellant operations for each Payload. This document shall identify all personnel who will be directly involved in handling liquid propellents at the Astrotech Facility and shall state that each individual is properly qualified for such activity. At Astrotech VAFB, the personnel so identified, by means of Astrotech sponsorship, may be required to obtain medical certification and attend USAF training courses as required by Air Force safety regulations.


6. Environmental, Safety, and Health Responsibilities.


6.1 Astrotech Obligations to LMCLS


6.1.1 Astrotech, at its own cost and expense, shall operate the Astrotech Facilities and conduct all Astrotech Payload Processing Activities in compliance with all applicable federal, state and local laws, regulations, rules, ordinances, and other regulatory requirements and standards relating to the regulation and protection of the environment, safety and health, in effect at any time during the period of this contract ("ESH Laws").


6.1.2 With respect to all Payload Processing Activities performed under this Agreement that are conducted on United States government-owned property, the term "ESH Laws" also includes all applicable base permits, operational plans and procedures and other site specific requirements relating to the environment, safety and health at the particular government-owned property in question.


6.1.3 Astrotech shall be considered the owner and operator of the Astrotech Facilities for the purposes of all applicable ESH Laws. Astrotech shall obtain, at its own cost and expense, any and all permits or licenses, maintain records and prepare any reports, manifests, or other documentation


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necessary to operate the Astrotech Facilities and conduct all Astrotech Payload Processing Activities in compliance with all ESH Laws.


6.1.4 Upon LMCLS's or the Customer's reasonable notice and request, Astrotech shall make available all permits, licenses, plans, procedures, manuals, protocols and other documents pertaining to the Astrotech Facilities (including any amendments or revisions thereto) that Astrotech has developed or maintained pursuant to applicable ESH laws.


6.1.5 Astrotech shall notify LMCLS and the Customer(s) of any potentially hazardous operations (as defined in Section 5.3) that are being conducted at the Astrotech Facilities by Astrotech or any of its other customers at the facility concurrent with LMCLS or the Customer's activities.


6.1.6 Astrotech shall be responsible for all permitted and unpermitted releases or discharges of pollutants, contaminants, hazardous substances, or petroleum products to the environment from or at the Astrotech Facilities related to activities performed by Astrotech, LMCLS, their agents (i.e., LMA) and their Customers. Notwithstanding the foregoing ...